Dockets:
A-7-12
Citation:
2013 FCA 209
Present: NOËL J.A.
PELLETIER J.A.
GAUTHIER J.A.
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BETWEEN:
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SANOFI-AVENTIS
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Appellant
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and
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APOTEX INC.
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Respondent
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AND BETWEEN:
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SANOFI-AVENTIS AND BRISTOL-MYERS SQUIBB SANOFI
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PARMACEUTICALS HOLDINGS PARTNERSHIP
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Appellants
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and
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APOTEX INC.
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APOTEX PHARMACHEM INC. AND
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SIGNA SA DE CV
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Respondents
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REASONS FOR ORDER
PELLETIER J.A.
[1]
Sanofi-Aventis and Bristol Myers Squibb
Sanofi Pharmaceuticals Holdings Partnership (Sanofi) bring a motion asking this
Court to reconsider its judgment in Apotex Inc. v. Sanofi-Aventis, 2013 FCA 187, [2013]
F.C.J. No. 857, so as to remove the reference to Signa SA de CV (Signa) and to
include Apotex Pharmachem Inc.(Pharmachem) in the portion of the judgment which
declares liability for infringement of specific claims of Canadian Patent No.
1,366,777. If Sanofi’s motion were granted, the judgment of this Court would
read:
The
judgement of the Federal Court is set aside. Sanofi-Aventis’ action for
infringement of the Canadian Patent No. 1,366,777 is allowed and, giving the
judgment which the Federal Court ought to have given, it is declared that Apotex
Inc. and Apotex Pharmachem Inc. have infringed claims 1, 3, 6, 7, 8, 9, 10, and 11 of that patent and
Apotex Inc.’s action seeking a declaration that Canadian Patent No. 1,366,777
is invalid is dismissed. The matter is returned to the Federal Court to deal
with the issue of remedies. Sanofi is awarded its costs to be assessed, both in
this Court and in the Federal Court.
The claim against Apotex Pharmachem Inc. and Signa Sa de CV is
dismissed but without costs.
[2]
The motion is brought
pursuant to Rule 397 of the Federal Courts Rules, SOR/98-106 (the
Rules), which is reproduced below:
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397. (1) Within
10 days after the making of an order, or within such other time as the Court
may allow, a party may serve and file a notice of motion to request that the
Court, as constituted at the time the order was made, reconsider its terms on
the ground that
(a) the order does
not accord with any reasons given for it; or
(b) a matter that
should have been dealt with has been overlooked or accidentally omitted.
(2) Clerical mistakes, errors or omissions in an
order may at any time be corrected by the Court.
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397. (1) Dans les 10 jours après qu’une ordonnance a été
rendue ou dans tout autre délai accordé par la Cour, une partie peut
signifier et déposer un avis de requête demandant à la Cour qui a rendu
l’ordonnance, telle qu’elle était constituée à ce moment, d’en examiner de
nouveau les termes, mais seulement pour l’une ou l’autre des raisons
suivantes :
a) l’ordonnance ne concorde pas avec les motifs qui, le cas
échéant, ont été donnés pour la justifier;
b) une question qui aurait dû être traitée a été oubliée ou
omise involontairement
(2) Les
fautes de transcription, les erreurs et les omissions contenues dans les ordonnances
peuvent être corrigées à tout moment par la Cour.
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[3]
Rule 397(a) has no application
in this case because, in its reasons, this Court said :
121. As the Trial Judge made no findings of infringement against
Apotex Pharmachem Inc. and Signa SA de CV, I would dismiss Sanofi's claims
against them.
[4]
As a result, the Court’s
judgment accords precisely with the reasons given for it.
[5]
That leaves the question of
whether there was an error, omission or mistake in the preparation of the
judgment.
[6]
Rule 397 deals with
correcting a judgment or order and not the reasons given for the latter: see Chénier
v. Canada (Minister of Veterans Affairs), [1991] F.C.J. No 908 (FCA) (QL), Sawridge
Band of Indians v. Canada, [1987] F.C.J No. 730 (T.D.)(QL), Halford v.
Seed Hawk Inc., 2004 FC 455, [2004] F.C.J. No. 557 (QL) at paragraph 10. This
is consistent with the position taken in paragraph 397(a) of the Rules,
that where there is a conflict between the judgment and the reasons given for
it, the reasons prevail. In other words, the judgment is modified, not the
reasons.
[7]
In this case, this Court came to a conclusion as to the liability of
Signa and Pharmachem. In the case of Signa, the parties are agreed that the
claim against it was discontinued before trial even though the style of cause
was not changed. The trial judge noted the discontinuance in his reasons. As
a result, it can be said that this Court’s decision dismissing
the claim against Signa was the result of an oversight and a correction of the
judgment as it concerns Signa is warranted.
[8]
That is not the case with Pharmachem. Sanofi says that
this Court overlooked the fact that the trial judge made a finding of liability
for infringement against Pharmachem but is not able to point to a specific
finding. Sanofi says that the finding of liability is implicit in the judge’s
reasons, arising from the judge’s use of Apotex to refer to both Apotex and
Pharmachem. In effect, Sanofi is saying that this Court erred in its
interpretation of the trial judge’s reasons. Whether Sanofi is right about
this or not is not the issue, though I believe that it is not. This is neither
an oversight (as in the case of Signa) nor an accidental omission, nor is it a
clerical error, mistake or omission. Rule 397 does not authorize this Court to
revise its understanding of a trial judge’s reasons on the basis of argument
submitted to it after this Court’s judgment has been rendered.
[9]
I would therefore allow the motion in part and amend
the second paragraph of the judgment issued by the Court to delete the
reference to Signa SA de CV so that the paragraph reads:
“Sanofi’s claims
against Apotex Pharmachem Inc is dismissed but without costs.”
[10]
In light of the divided success, each party should bear its own costs.
"J.D. Denis Pelletier"
“I agree
Marc Noël J.A.”
“I agree
Johanne Gauthier J.A.”
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